The Right to Disconnect: Should There Be a Legal Limit on Email After Work?

By: Linda Bond Edwards

05.17.19

By Linda Bond Edwards and Patrick Flemming, Chief Regulatory Officer of FBMC Benefits Management


This article was orginally published by ACC Docket on May 17, 2019. 

New York City may become the first city in the United States to grant employees the “right to disconnect” after work. Lamenting the “always on the job” side effect of the digital revolution, city councilman Rafael L. Espinal, Jr. (D), chair of the Committee on Consumer Affairs and Business Licensing, has introduced a bill that is aimed at helping employees achieve a better work-life balance. “When does your workday end?” he asks. It seems like a simple question, but is the answer clear? Under Espinal’s bill, employees would generally be protected from adverse employment action if they chose not to respond to work emails or communications outside of “usual work hours.” 

The proposed law requires employers to adopt a policy governing the use of electronic devices and other digital communications during non-work hours, set forth “usual work hours” for each employee class, and explain the categories of paid time off available to employees. The proposed bill would apply to private employers with 10 or more employees. Notably, the protections of the bill are not extended to governmental employees. Employers would still be required to comply with the overtime provisions of the Fair Labor Standards Act (FLSA) by paying overtime for all hours worked over 40 in a workweek.

The New York proposal also includes an administrative process that provides for investigation of complaints, as well as remedies that include a US$250 fine for each instance that an employee is required to access a work-related electronic communication outside of work hours; US$500, lost compensation, and equitable relief for each instance of retaliation; and US$2,500, lost compensation, equitable relief, and reinstatement in instances of unlawful termination. There is an exception for after-work communications made during an “emergency,” but that term is defined either too broadly or too narrowly depending on who you ask.
 
Support for the bill is mixed. At a January 17, 2019, public hearing on the bill, representatives from business advocacy groups such as the Real Estate Board of New York, the Brooklyn Chamber of Commerce, Tech:NYC, and the Partnership for New York City all opposed the measure. Most argued that the “untested” law is not nuanced enough to accommodate the varying work styles and schedules of New York City’s professional and multinational organizations, claiming that the law would put New Yorkers at a competitive disadvantage. 

The New York Department of Consumer Affairs — the agency that would be charged with investigating alleged violations of the law — expressed serious concerns about the ability to enforce the law across thousands of employers, as well as the impacts the law would have on the economy. On the other side of the coin, proponents of the bill praised the measure as a way to end the exploitation of workers who, because work is just a swipe or click away, cannot escape the stress and demands of their jobs. 

Technology is a major culprit

“Technology has aggressively advanced over the past 15 years with email and smartphones, but regulations and laws haven’t caught up with it,” Espinal claims. Technological advancements have made it very easy for work to spill over into non-work time. Smartphones and laptops have enabled the so-called “new night shift,” as employees log back on (if they ever logged off) to continue working and respond to emails. Indeed, with smartphones, most people are connected to work 24/7. Espinal’s bill was reportedly designed for employees who are “supposed to work seven to eight hours a day but are putting in 12 hours because they are accessible outside the office.” The New York Times reports that employees spend an extra eight hours a week answering emails after work.

Additionally, these extra hours might not result in a net benefit to the company, or its employees. A recent study from the University of Virginia finds that employees are more productive and creative if given more time to “recharge.” Other studies have shown that the creeping use of technology can lead to stress, burnout, and emotional exhaustion, which not only affect job performance, but also have deleterious effects on relationships at home. 
 
Reportedly, just having cellphone access to emails after work — regardless of checked or even received — triggers feelings of anxiety and leads to a decline in well-being. This will ultimately hit the employer’s wallet too. Stanford professors have found that work-related stress adds five to eight percent more to healthcare costs. Additionally, Espinal cites a study from the Organisation for Economic Co-operation and Development, which found that workers in Germany are 70 percent more productive than their Greek counterparts who work 14 hours more per week. Given these findings, it makes sense to loosen or cut the digital leash that tethers people to their jobs after hours. 

Alternatives from across the pond

If municipal governments are dead-set on legislation in this area, then perhaps the French model is an option, or at the very least, a way toward a smarter proposal. Like New York City officials, the French government felt that legislative intervention was necessary to curb the encroachment of work into home life. Effective January 1, 2017, France’s Right to Disconnect law requires employers of 50 or more employees to clearly negotiate and outline the expectations regarding after-hours work communications. If negotiations are unsuccessful, the employer must still establish a charter that outlines workers’ rights after work hours. Of course, employees may choose not to work for that employer if they dislike those rights. 

The French law does not outright ban after hours emails, nor does it impose fines on employers who violate their communications charters or negotiated practices. Italy has passed a similar right to disconnect law, requiring only that negotiations occur and that expectations regarding out-of-office work is clear. Both laws implicitly acknowledge that a rigid ban is incongruous to the necessarily nuanced and varied work styles and needs of organizations and employees. 

Change needs to come from within

It is unlikely that New York City’s proposed legislation, or similar laws, will altogether restore work-free nights, weekends, and vacations to employees. To achieve that, corporate and social norms must change. This is evidenced by recent survey results from Robert Half Technology, a national IT staffing firm that surveyed 2,800 IT leaders and office workers in 28 major US markets. According to the survey results, only 66 percent of IT managers and 46 percent of IT workers said they would be able to adhere to a ban on after-hours emails. What’s more, IT employees in New York were among those who were reportedly most likely to respond to emails outside of normal working hours. What’s unclear are the reasons why people feel the need to stay connected.

Education, not legislation, seems to be a more effective and lasting way to change culture and behavior. Here, the onus is on the employer to acknowledge and respond to evidence that an overworked and stressed workforce is less productive, costlier, and has higher turnover. Additionally, employers must be realistic when addressing work-life balance for non-exempt employees (and all employees, quite frankly). 

If non-exempt employees are routinely working 60-70 hours per week, despite being paid overtime, the employer should evaluate if that is consistent with the culture the company would like to possess. It is prudent in these situations for employers to carefully analyze why employees are working excessive hours or being compelled to be available after hours. Perhaps there are staffing or work process issues that need to be remedied. Everyone understands the occasional rushed, overtime project where “all hands on deck” are needed to finish, but that should be the exception, and not the rule. Further, in those rare circumstances, employers should provide as much advance notice to employees when additional time will be needed after hours. 

In addition to reconsidering best practices related to after-hours work, employers may wish to evaluate email usage during work hours as well. Studies have shown that employees who access email only a few times a day were less stressed than those who checked emails continuously. Relatedly, “email overload” can also contribute to stress and reduce productivity, as the number of overall emails received daily continues to rise. Thus, employers would benefit from tackling emails and communications both during and after work by establishing a clearly stated code of practice for emails and work-related communications.

Protecting work-life balance is important, but there is a better way

While the current political and socio-economic climate has brought to the forefront the importance of moderating work-life balance, New York City’s proposed law appears to fall short of providing an effective solution. Additional study on the specific impact the bill would have on New Yorkers is prudent. In the meantime, many studies are already available to guide employers and employees toward striking a productive and healthy work-life balance. 

About the Authors:

Patrick Flemming is chief regulatory officer of FBMC Benefits Management. He is responsible for all aspects of corporate governance, risk management, legal and regulatory compliance, and corporate regulatory training. Prior to working with FBMC, Flemming served as assistant general counsel for the Florida Office of Insurance Regulation, where he handled complex regulatory issues and litigation involving primarily life and health insurers and third-party administrators, including licensing, solvency, and product review.

Linda Bond Edwards, a partner in the Tallahassee office, represents employers in the private and public sectors, including but not limited to health care, law enforcement, municipal government, and benefits management in matters involving employment and labor issues. As a former corporate director of human resources, Edwards brings to her legal practice the pragmatic and real-world experiences arising from the employer-employee relationship. 


 
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